Category: Articles

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Official SCAO Forms Now Required to be Used Where Possible in Probate Court

MCR 5.113(A) has been amended.  The court rule amendment recently adopted by the Michigan Supreme Court, effective May 1, 2019, requires that the actual Supreme Court Administrative Office (SCAO) form, if one exists, must be filed with the probate courts.[1] Previously, documents “substantially in the form approved by the State Court Administrative Office” were acceptable for use.  The Rule now mandates that “if SCAO has approved a form for a particular purpose, it must be used when preparing that particular document for filing with the court.” [2]

This now means that “homemade” forms created by law offices and previously accepted by the probate courts, although not official SCAO forms, will no longer be accepted; only the official SCAO version can be filed. This change also emphasizes that pleadings drafted from “scratch” purported to serve the same purpose as an existing SCAO form will not be accepted, although probate courts have been pushing back against standalone non-form pleadings for some time now where there is an existing official SCAO form for that purpose.

Official SCAO forms, while an efficient, standardized tool for case administration in the probate courts, often leave a lot to be desired in terms of space and content. If more detail is needed to supplement an existing form, the best advice is to then make the extra detail an attached pleading to the particular SCAO form that is required for use. RL

Notes

  1. MCR 5.113(A) pre amendment
  2. MCR 5.113(A) post amendment


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Michigan Now Regulates Deed Solicitation

As of July 11, 2016, soliciting a fee for providing a copy of deed is a now regulated activity in the State of Michigan and carries civil penalties for noncompliance. The new law is known as the “Solicitation of Deeds Act. [1] A previous article provides background into what has been a contentious issue with several register of deeds offices in Michigan. Whatever the opinion on the merits of private business versus county office or public protection, this new law now severely limits what can be done in the deed solicitation business and puts significant obstacles in front of running such a business.

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The 2016 law sets out the following requirements for a person soliciting a fee for providing a copy of a deed even if the copy itself is free, and these requirements are:

  1. The solicitation must state on the top of the document used for the solicitation, in at least 24-point type, all of the following:
    • That the solicitation is not from a public body.
    • That no action is legally required from the person being solicited.
    • The amount of the fee for obtaining a copy of the deed from the public body that has custody of the record.
    • The information necessary to reach the custodial public body.
    • The name and physical address of the person soliciting the fee
  2. The document used as the solicitation shall not be a form or use deadline dates so as to appear issued from a public body or that appears to impose a legal duty on the person being solicited.
  3. A person soliciting a fee for providing a copy of the sees shall not charge a fee 4 times more than the statutory fee charged by the custodial public body.
  4. A person soliciting the fee shall furnish a copy of the solicitation to be use to the office of the register of deeds in each county where the solicitation will be distributed. [2]

Certain business are specifically exempted from the Act. These are title insurance companies, mortgage companies including brokers and lenders, and real estate brokers, and real estate brokers and salespeople. [3] Curiously omitted are attorneys. However , the definition of “solicitation” in the statute is “to advertise or market to a person with whom the solicitor has no preexisting business relationship”. Therefore, an attorney pulling a deed for a client and charging that client for the time or service is not within the purview of the Act.

Penalties for noncompliance are as follows: for a first time offense, $100 per solicitation/document in violation of the Act; and for a subsequent offense, $200.00 per solicitation/document. [4]  Civil fines collected go to support public libraries. [5] The Act authorizes Attorney general action against violators. [6] There appears to be no private cause of action under the statute.

The new law should have a chilling effect on the private business of deed solicitation in Michigan. If the goal is to protect elderly or unsophisticated persons who tend to be disproportionately affected by misleading solicitations, this appears to be in the public interest. Otherwise, the merits of the law are less clear.  GJR

Notes:

  1. MCL 445.1031 et seq.
  2. MCL445.1033.
  3. MCL 445.1034.
  4. MCL 445.1035.
  5. MCL 445.1035.
  6. Id., MCL 445.1036.
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Register of Deeds Recording Fees Increasing October 1, 2016

Effective October 1, 2016, pursuant to Public Act 224 of 2016 which amended Public Act 236 of 1961, the fee for recording a document with any county Register of Deeds will increase from the current fee of $14.00 plus $3.00 for each additional page to $30.00 flat fee (inclusive of Michigan Remonumentation and Register of Deeds Automation fees) regardless of the number of pages in the document. [1]  There is one exception: if the document to be recorded assigns or discharges more than one instrument, there is an additional $3.00 fee for each additional instrument assigned or discharged. [2]  Also to certify a recorded document is now $5.00; however the fee for copies of documents remain at $1.00 per page. [3] 

For larger documents (six pages or more, exclusive of assignments and discharges) there is certainly a cost savings versus the previous fee schedule. However, for the vast majority of document recordings, especially deeds where most are only one to a few pages, the cost of doing business has substantially increased, basically doubled. As with many of the court fee increases over the last year, this change appears to be a revenue generation measure for the State of Michigan, to make up for fiscal losses in other areas. GJR

Notes

  1. MCL 600.2567(1)(a)
  2. MCL 600.2567(1)(b)
  3. MCL 600.2567(1)(c), (d)
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Appeals Court Upholds Exempt Property Allowance, Defeating Disinheritance Provision in Will

A recent decision by the Michigan Court of Appeals is making waves in the probate and estate planning community. In a self-proclaimed issue of first impression, the Court in In re Estate of (Shelby Jean) Jajuga [1] upheld a sole surviving, disinherited child’s claim to exempt property in her deceased mother’s probate estate.

In a case out of Clare County, Michigan, the sole surviving adult child of the decedent was disinherited in her mother’s will, a will that was reaffirmed in a later will amendment, or codicil. The disinheritance provision in the will was very clear: the disinheritance was not for lack of love but because the children had already received compensation and per the testator it was not in their best interest that they received anything further. Beneficiaries other than the children were instead provided for in the will.

Disinherited Child Claims Exempt Property Allowance Under Statute

Following the mother’s death, the surviving child claimed exempt property allowance under the probate code [2]. The personal representative, who was not the child, denied the allowance. The child then filed a petition with the probate court claiming that the personal representative had refused to pay the preempt property allowance. The child claimed certain property from the estate under the statutory allowance which included a car, a tractor, or in the alternative, $14,000 in cash. The estate argued that the child was not entitled to exempt property under the statute because the child was specifically disinherited in the will.

Court Upholds Exempt Property Allowance Claim

The probate court held that, as an issue of first impression (meaning that the issue had never been addressed by the Michigan appeals courts), the child was entitled to the exempt property requested. The probate court concluded that a testator cannot preclude a child from taking exempt property through a disinheriting provision in a will. The court relied on legal interpretation as well as general public policy, specifically that the exempt property statute is for the protection of souses and children and should be liberally construed, opining that the children’s rights to exempt property are equal to those of a surviving spouse.

Checklistattheblackboardwithcopyspace_webThe estate appealed. The Michigan Court of Appeals received the case, agreeing that their was an issue of first impression. The Court rejected that the sole focus should not be the testator’s intent as the statute overrides the intent when it comes to statuary protections including exempt property. The Court even addressed the definition of “entitled” (along with other terms found in the statute), finding that the Michigan Legislature’s use of the word establishes a statutory right to a mandatory transfer of exempt property, not merely a priority right. The Court also sided with the probate court that an adult child does not have an inferior right to exempt property when compared to a surviving spouse.

The Court concluded that it would have been “prudent” for the Michigan Legislature to specifically detail the way in which a disinheritance in a will affects a child’s claim to exempt property but furthered that it is not the Court’s role to do so, even though the statute is silent. The Court upheld the probate court’s decision that the child had the right to the exempt property.

Effect on Estate Planning

The Jajuga decision is appears to be a correct interpretation of the exempt property law without further guidance from the Michigan Legislature. Yet it is another example of courts needing to address laws that should have been drafted with more clarity and less room for conflict in the first place. That said, estate planners are best to heed this decision: that a testator cannot completely disinherit children with just a will. For those testators looking to plan around this decision, the use of trusts will be essential, in taking assets out of the probate estate. GJR

Notes

  1. Michigan Court of Appeals Case No. 322522 (Decided October 20, 2015)
  2. MCL 700.2404.
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Legacy Contacts and Digital Assets

You have spent years building your digital self. So what happens to that digital self when you die?

Your Digital Self

People tend to think of assets as physical possession, such as real estate and cars; or in terms of money, whether it be bank accounts, stock, etc. In the modern information age, however, we have digital footprints whether we intend to or not, and it is increasingly becoming more complicated to avoid.

Legacy Contacts

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Who controls your digital self after your death?

Facebook is a good example of the voluntary digital footprint. People identify themselves by or with their Facebook status, posts, and page, and update these things  on a regular basis.  It is an account like any other account and worth protecting from unauthorized users. However, what happens when you no longer can maintain it due to your own death. At this point nobody is legally authorized to access the account, make changes, or shut down the page.

Facebook now allows users to establish a “legacy contact”. According to Facebook website, a legacy contact is someone you designate to monitor your account if it’s memorialized, which is a special account designation by Facebook that remembers you by preserving your profile instead of deleting it. Facebook has instructions on how to create a legacy contact on its website.

Once your account is memorialized, your legacy contact can then: write a pinned post for your profile (ex: to share a final message on your behalf or provide information about a memorial service, respond to new friend requests (ex: old friends or family members who weren’t yet on Facebook), or update your profile picture and cover photo, or download a copy of what you’ve shared on Facebook.

Per Facebook the legacy contact cannot log into your account, remove or change past posts, photos and other things shared on your Timeline, read messages you’ve sent to other friends, or remove any of your friends.

Assuming that a legacy contact is not established – and many people are not aware of it – there may not be legal recourse to have changes made post mortem, and your Facebook page could continue on indefinitely.

Digital Assets

Facebook is used an example here but is just the tip of the iceberg when it comes to social media or other digital presences. In fact, so much of our daily lives involved so-called “digital assets”, from social media sites, to banking, to shopping, to email. So how do your trusted loved ones access all of these assets after your death? Personal representatives normally are allowed to access online accounts that are tied to non-digital assets, such as bank accounts that represent financial assets. But when accounts are strictly digital, such as Facebook or email, the issue is more complex and the law has not yet caught up.

A Michigan House Bill introduced in 2012 by State Representative Mark Meadows, 2012-HIB-5929, seeks to amend the Estate and Protected Individuals Code (EPIC) [1] by adding a new section giving personal representatives (executors) in Michigan the explicit power to “take control of, conduct, continue, or terminate, and account of the decedent on a social networking, microblogging or short message service, or electronic mail service website.” EPIC specifically grants a set of statutory powers authorized to personal representatives.[2] While all of these powers are in a single section, they wholly or singly do not encompass the powers proposed in the new Bill. This seems to be an easy addition to personal representative powers in Michigan but has been pending for three years now. Michigan is behind some other states who have already enacted such laws. GJR

Notes

  1. MCL 700.1101 to 700.8206.
  2. MCL 700.3715.

 

 

 

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Now Offering Probate & Estates Mediation Services

Roth Law is pleased to announce that Attorney Gregory J. Roth is now offering his services as a probate & estates mediator. Mr. Roth brings his extensive experience in probate & estates law to the mediation table. As an alternative to often protracted and expensive litigation, mediation can benefit parties to probate & estates disputes.

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Since 2001, Mr. Roth has has held a variety of roles in the probate & estates petition and litigation process. In the public sphere, he has been appointed by the probate court as guardian ad litem as well as attorney for incapacitated and protected individuals. He has also served as fiduciary for wards in the probate court, with appointments as guardian, conservator, special conservator, and special fiduciary.

Privately, Mr. Roth has represented family members in protective proceedings as well as decedent and trust administration and litigation matters, whether as petitioners, respondents, fiduciaries, or interested persons. Additionally, Mr. Roth has prosecuted and defended creditor claims against probate estates.

Mr. Roth’s breadth of experience with probate & estates administration and litigation lends itself to effective and balanced mediation in all probate court matters and ensures that all parties will be treated fairly. Adding to nearly fifteen years of concentrated probate experience, Mr. Roth has completed the 40-hour civil mediator training course and is seeking qualification on the Oakland County Probate Mediator and Oakland County Civil Mediator lists.

Mediation referrals are being accepted in the following areas:

Guardianship ● Conservatorship
Decedent Estates
Wills ● Trusts ● Powers of Attorney
(medical, financial, “living will”, HIPAA release)
Settlement Protection (for minors)
Wrongful Death Distribution ● Elder Protection

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Document Retrieval Services: Scam or Convenience?

You receive an official-looking and urgent letter in the mail stating that you need to obtain a certified copy of the deed to your house in order to protect yourself and that the company sending the letter can help. This needs to be done immediately, so drop what you are doing and send in your check. Right?

Some Register of Deeds Offices Cry Foul

A number of local register of deeds offices have posted online alerts regarding solicitations of so-called document retrieval service companies, claiming that they are alarming residents into paying excessive fees for something they the residents can do themselves at the local register of deeds office. Some of the alerts include:

A copy of one of the contentious Michigan Document Retrieval Service letters reads:mdrs_letter

The Cost of Doing Business

Just because the document retrieval service is charging more money that your local register of deeds charges does not mean that it is a scam.  If the company provides the service it claims and it upfront about the costs, the extra money charged equates to the cost of doing business as an understood convenience to the consumer.  It is likely inexpensive to go directly to or call your local register of deeds to obtain copies yourself, unless you do not live in the area. For example instead of preparing dinner or walking the dog yourself, you can hire and pay someone else to do it. The consumer weights the options, balancing time vs. money.

But Beware Untruthful Representations

The grey area in terms of scam might be the pressure-filled language and print, or other urgent representations that is often used in these letters to move the consumer to sign up for the service.These companies should be careful not to represent things that are not true; or better yet, to advise the resident of their and option to be able go directly to their local register of deeds office instead.

For example, the Michigan Document Retrieval Service letter clearly uses urgent language such as “Your rights may be in jeopardy…” and “You should obtain one immediately…” It further goes to state that you should have a certified copy of your deed on hand; where, while certified copies are necessary for certain transactions, they are not necessary for research or verification purposes as to title. Also, just having a copy of the deed, while it allows one to verify that information on the deed is correct, does not allow one to verify “free and clear title”, that the property is “free from all liens and encumbrances”, that title is “defendable in court against all legal claims”, or to “verify that property taxes are entered in your name”, as the above document indicates.  This is where the potential for misrepresentation, intentional or otherwise, creeps in.

There has been nothing to suggest that these companies do not deliver on the service that they promise. Rather, complaints revolve around the sales tactics but even more so the price. Scam? Probably not. Wise? It’s the buyer’s choice, and buyer should make an educated decision, or beware. GJR

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Recording Letters of Conservatorship

In Michigan, appointment as conservator legally vests the conservator with title to all of the protected individual’s assets or those assets specified by the court (if less than all assets). The former is a full conservatorship; the latter, a limited conservatorship. Letters of Conservatorship, as generated by the court, are the evidence of transfer of the protected assets.[1]  Once the assets are so vested, a ward cannot legally transfer or assign the assets. In many cases, the conservator is restricted from selling real estate without an order of the court.

Letters May be Recorded

In Michigan, title to real estate is conveyed through deeds. Generally, these deeds are recorded with the local register of deeds in the county where the real estate sits, in order to give notice to third parties that the transfer has taken place. This notice can have an important effect on the rights of parties to the real estate and thus it is often advisable to have deeds recorded although recording is not required for legal transfer.

Conservatorship by itself does not evidence a transfer of real estate to the conservatorship estate, and without more, there is no record of the conservatorship “transfer” in the local register of deeds office.  However, conservatorship letters may be filed or recorded with the county register of deeds in order to give record notice of title as between the conservator and the protected individual.[2]

Recording is not a Requirement

That being said, the recording of conservatorship letters is not required in Michigan and is, more often than not, not done. This may be because many practitioners and fiduciaries are unaware of the ability and maybe the benefit, of doing so. In the absence of recording, the general public is not put on notice that a fiduciary is in charge of a specific piece of property. This can lead to title issues.  In some cases, one with which the writer had direct experience, properties can be sold with any knowledge of a conservator being in charge, leading to sales that have circumvented court restrictions and have occurred without court knowledge or involvement, thereby defeating the purpose of the court restrictions in the first place. GJR

Footnotes

  1. MCL 700.5420(1).
  2. MCL 700.5420(2).
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Michigan Guardians May Now Execute DNR Orders

On November 5, 2013, Michigan Governor Rick Snyder signed into law Public Acts 155, 156 and 157 of 2013 giving a legal guardian the power to execute a Do-Not-Resuscitate (DNR) order on behalf of the guardian’s ward. The Acts amend the Michigan Do-Not-Resuscitate Procedures Act (enacted in 1996), the Adult Foster Care Licensing Act (enacted in 1979), and the Estate and Protected Individual’s Code (enacted in 1998). The amendments took effect on February 5, 2014 and authorize new guardianship power in Michigan.[1]

AdobeStock_27729418_webPrior to the amendments, Michigan courts have disagreed as to whether a guardian could consent to a DNR order for the ward.  The legislature has now permitted it. However, the new amendments only apply to the withholding of resuscitative measures from a person who is in a facility or residence other than a hospital (e.g., a nursing home, home for the aged, adult foster care facility, assisted living, hospice residence, or the ward’s private residence). DNR orders and measures in a hospital are not subject to this new law, and a guardian has already authority (if within the guardian’s powers as provided by the court) to consent to a physician’s order to withhold resuscitative measures in a hospital.

New Powers

The amendments provide the guardian with the following powers:

  • A legal guardian now has the power to execute a DNR order for the guardian’s ward, as if the ward could do so himself or herself.
  • Once the DNR order is executed, the guardian may apply a DNR bracelet to the ward’s wrist.
  • The guardian may revoke the DNR order at any time by voiding the DNR order in writing and by notifying the attending physician and the administrator of any facility in which the ward resides.
Conditions and Restrictions

The amendments incorporate certain safeguards to the new DNR powers:

  • In all new guardianship cases, the guardian ad litem assigned to each guardianship case must discuss the DNR issue with the proposed ward and incorporate the findings into the guardian ad litem’s report to the court.
  • A guardian must visit the ward within 14 days before the guardian can legally execute a DNR order on behalf of the ward, and the guardian must attempt to discuss the DNR order with the ward if meaningful communication with the ward is possible
  • The guardian must also personally consult with the ward’s attending physician regarding the basis for the DNR order.
  • The guardian must provide a copy of the DNR order to the ward’s attending physician and to the administrator of the facility in which the ward resides or the order must be available in the private residence if the ward ward resides at home.
  • The DNR order is only valid for one year, at which time it may be reaffirmed (extended) but only after the guardian visits the ward and discusses with the ward’s attending physician.
  • Any interested person (as legally defined in the guardianship case) may petition the court for review of a DNR order to determine its validity if there is a question as to whether the DNR was properly executed by the guardian.

In every guardianship petition that is filed, the court should already be making a determination on whether a legal guardian is to receive the DNR power in the specific case. The court must grant the guardian the authority over consent to a DNR order both in the court order of guardianship and the letters of guardianship given to the guardian.  This is accomplished by specifically referencing the power or by not excluding the power from the general powers granted. Consistent with guardianship proceedings in general, the DNR power given to a guardian must be in the ward’s “best interest” as determined from the facts of the case, the medical opinion of the ward’s physician, and the ward’s wishes.

Specific Form Required

The DNR order itself must be in writing and in a form that is “substantially” similar to the form language provided as an example in the statue.  Generally, unless consulting with an attorney, it is best to use the statutory form in its entirety and without changes.  There is an alternate form for individuals who have religious beliefs against using doctors.  Copies of the statutory form are usually available at hospitals or through hospice providers, although a qualified attorney can prepare the document as part of a personalized estate plan.

Better Care or Too Much Power?

These new DNR amendments will enable hospice providers and physicians to provide better care to those with terminal conditions who are under the care of a guardian and who are outside of the hospital setting . However, this represents a new level of power (and responsibility) for guardians in Michigan and could be subject to misuse.  As with all laws, only time will tell of the law’s practical application and effect. GJR

Notes

  1. See generally MCL 333.1053a and MCR 700.5314.
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Guardianship and Conservatorship Training, for Free!

So you have been appointed as guardian for an individual or as conservator over their estate (finances). Now what do you do? 

As a fiduciary, you are responsible for the best interests of the ward and for complying with state and local requirements. Doing the wrong thing, or even nothing at all when you have a duty to act, can be detrimental to the ward and can land you in legal trouble. So how do you know what to do, and do it correctly?

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Help is often available at your local courthouse.

Many probate courts offer free guardianship and/or conservatorship classes. For the courts that offer it, this basic training is generally encouraged and is sometimes required depending on the case and the judge. Here are some courts that offer free training programs (this list will be periodically updated as information becomes available):

Take the time to look into these or other classes offered at your local county courthouse. Although not a substitute for personalized legal advice from a qualified attorney, these programs are a good starting point for questions and concerns about serving as a guardian or conservator. Both you and your ward will benefit. GJR